In a pivotal ruling, the Bombay High Court reaffirmed the right of tenants in cessed buildings to receive 405 sq ft of carpet area for their rehabilitation flats. This decision came as a result of a writ petition filed by 59 residents of Mohamed Taibhai Chawl in Worli, contesting a developer's attempt to provide them with only 351 sq ft of carpet area under Section 33(7) of the Development Control and Promotion Regulations (DCPR) 2034. Armed with building plans obtained through the RTI Act, the residents argued for larger rehab flats, more parking space, and increased amenity open space.
In a landmark decision on Monday, the Bombay High Court affirmed the rights of tenants residing in cessed buildings to receive a 405 sq ft carpet area for their rehabilitation flats. The ruling came in response to a writ petition filed by 59 residents of the Mohamed Taibhai chawl in Worli, challenging the decision of developer Oricon Properties Pvt Ltd to provide them with a smaller 351 sq ft carpet area. The chawl is currently undergoing redevelopment under Section 33(7) of the Development Control and Promotion Regulations (DCPR) 2034.
Armed with building plans obtained through the Right to Information (RTI) Act in 2015, the residents approached the court seeking larger rehab flats as stipulated by the DCPR, as well as a parking lot for every four rehab flats and an increase in amenity open space. The municipal commissioner had previously reduced the amenity open space from 20% to 8%.
The tenants' advocate argued that the developer had misled the tenants by claiming it was not feasible to provide 405 sq ft flats, citing payment for fungible Floor Space Index (FSI) to offer an additional 51 sq ft carpet area over and above the required 300 sq ft. However, it was revealed that as per Regulation No. 35(2) of the DCR 1991, the staircase, lift, and lobbies are not counted in the FSI, so the balance portion of the fungible FSI cannot be used for these purposes.
Furthermore, architects' certificates were presented, indicating that in the redevelopment of cessed buildings, eligible tenants were entitled to 405 sq ft of carpet area. The petitioners' advocate pointed out that the developer's plan indicated that 35% of the fungible area would be used for the redevelopment scheme, amounting to 105 sq ft on a 300 sq ft area. Thus, the tenants were entitled to a total of 405 sq ft.
In response, the developer's advocate argued that there had been a significant delay in filing the petition, and 198 tenants had already granted their consent. Additionally, some tenants resided in premises smaller than 150 sq ft. Under Section 33(7), tenants were entitled to only 300 sq ft, which the developer was exceeding by providing an additional 51 sq ft.
The division bench of Justice Sunil Shukre and Justice Rajesh Patil noted, "There is no doubt the tenants are eligible to get carpet area in rehab building of 300 sq ft + 105 sq ft (35% compensatory fungible FSI). The argument of the developer has no legal sanctity."
The High Court determined that the tenants were entitled to one parking area for every four tenements, which should be made available to them within eight weeks. Regarding the reduction of amenity open space by the civic chief, the High Court directed that the matter be re-heard.
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